Anger and grief over the shooting death of 28-year-old Ontario Provincial Police Const. Grzegorz Pierzchala in late December has prompted calls for tougher bail laws.
The accused, Randall McKenzie, 25, and Brandi Crystal Lyn Stewart-Sperry, 30, are each facing a charge of first-degree murder in relation to the young OPP officer’s death.
McKenzie was out on bail with a warrant out for his arrest for breaching conditions. His past offences include several firearms offences and assaulting a peace officer.
As the community mourns Pierzchala’s senseless death, some legal experts caution against heeding the impassioned — and heated — pleas for change. They argue tougher bail laws across the board could actually make the public less safe — and force more legally innocent people to suffer.
“We do not want to imprison people who have not been found guilty. We don’t want to imprison innocent people,” said Michael Spratt, a criminal defence lawyer in Ottawa.
On top of the risk of keeping an innocent person incarcerated, Spratt said that using pretrial detention and denying people bail is something that “disproportionately affects people from lower socioeconomic groups.”
In-depth reporting from Reuters backs up Spratt’s claims.
Between April 2015 and April 2016, Black people awaiting trial in Ontario jails were there longer, on average, than white people charged with the same crime “in 11 of 16 offense categories Reuters examined.”
On top of that, Spratt said, being held in remand actually “increases the rate of recidivism,” which means the person is “more likely to commit offences when they eventually are released.”
Spending time in detention, even for a short period of time, can cause people to lose income, housing, employment and social connections, according to a 2014 report from the Canadian Civil Liberties Association.
All those things are “stabilizing factors,” it said, that contribute to “individual success and community safety.”
“The majority of people who are admitted to pre-trial detention are facing non-violent charges,” the report said.
“There is no trade-off between a sensible, defensible, rights-respecting bail system and public safety: these are mutually reinforcing goals.”
Spratt expressed a similar concern.
“If someone is cut off from the community, cut off from employment, cut off from family, are exposed to violence, exposed to negative influences while in custody, they’re more likely to reoffend,” he said.
Are tougher bail laws the answer?
According to Statistics Canada figures from 2018-19, there were 70 per cent more adults in remand — meaning they were denied bail — on an average day than adults who were there because they had been convicted of a crime.
More than 14,700 incarcerated people in Canada were there because they had been denied bail and were awaiting a trial — meaning they’re still presumed innocent — while more than 8,700 people were there because they had been convicted of a crime.
“The vast majority of people in prisons are legally innocent,” said Jane Sprott, a professor in the criminal justice department at Toronto Metropolitan University.
“It’s easy, in hindsight, to point to someone and ask why they weren’t detained, but the problem is that we can’t know who will do what with any certainty ahead of time. And the other side of the coin — the vast majority of people who are released who do nothing criminal while on release — is often ignored.”
Being denied bail can have a serious impact on a person’s life — even though that person has yet to be convicted of the crime they’re charged with, Sprott said.
“If we continue to detain more and more people before a conviction, its unlikely to have any meaningful impact on crime, but would come at a considerable financial and personal cost, especially for those who ultimately end up with all changes withdrawn,” she explained.
Sprott said she had seen older Ontario data that suggested one in four people held in pre-trial detention “had all charges withdrawn.” Despite this, they “had been in detention likely long enough to likely lose both their job and housing,” she added.
Does being denied bail cause unfair legal outcomes?
For some of these people, the time they’re forced to spend in remand forces them to make some difficult decisions.
“The number of times that I’ve had to have such hard conversations with clients where they are innocent,” said Spratt.
“I tell them they can win their case because the evidence is on our side, but they’re denied bail … either because of a past record or because (they have) no stable address or because they’re marginalized in some way.”
But then, when his client is told their trial will be months away and they could be released today if they plead guilty — despite Spratt’s belief they could win their case — many choose immediate freedom.
“The incentive to plead guilty and accept responsibility for something you didn’t do — even though that means you could get a record or lose employment opportunities, or lose housing opportunities or lose the ability to travel or parent your children — is so overwhelming, because the conditions in jail are so Dickensian,” Spratt said.
What are politicians and police calling for?
Conservative Leader Pierre Poilievre held a press conference in the days following Pierzchala’s death to demand that the Trudeau government “reverse its catch-and-release bail policy.”
“In this particular case, the accused was out on bail after having … allegedly committed similar violent offences, including offences with firearms and offences against police officers,” Poilievre said.
He focused specifically on Bill C-75, a huge piece of legislation that the Liberal government passed into law in 2019. The bill made a number of changes aimed at reducing judicial delays, modernizing the bail system, and reducing the overrepresentation of racialized people in jails.
Poilievre said the government must ensure that people who are arrested on violent crimes “stay in jail until their trial is complete” and, if convicted, “stay behind bars until such time as it can be assured to all of us that they are no longer a danger to the public.”
He wasn’t alone in calling for tougher bail laws. The Canadian Association of Chiefs of Police (CACP) also fired out a press release last week demanding “legislative reforms, including the bail process involving violent repeat offenders and violent firearm offences.”
Toronto Mayor John Tory issued a similar appeal last week.
“We just can’t have people over and over and over again, being released out into the streets before the paperwork is even done,” he said.
Feds defend changes to bail system
While Poilievre points the finger at Bill C-75 and advocates highlight the concerning impact of holding people in remand, the federal government is defending the existing bail regime.
Justice Minister David Lametti was “shocked and dismayed” by the fatal shooting of Pierzchala, he told Global News in a statement.
“I want to offer my condolences to his family, loved ones and colleagues,” Lametti wrote.
“Our government will always work to ensure that our criminal laws, including the law of bail, effectively meet their objectives, keep all Canadians safe, and are consistent with the Charter of Rights and Freedoms.”
However, Lametti pushed back on Poilievre’s assertions that Bill C-75 resulted in an overly lenient bail system in Canada.
“The criteria for when accused persons can be released by police, a judge or Justice of the Peace were not changed by Bill C-75,” he said.
“Bill C-75 simply brought the Criminal Code in line with binding Supreme Court decisions.”
In Canada, there is a constitutional right not to be denied bail without “just cause.” It’s enshrined in law that the detention of an accused person is justified if it is “necessary to protect the safety of the public, to maintain the public’s confidence in the justice system, or to make sure the accused person attends court,” Lametti explained.
When firearms are involved, the bar for bail can be set even higher. A reverse onus is imposed on the accused when they’re charged with some firearms offences. That means they’ll be detained by default — and the accused will have the responsibility of proving that bail would be justified in their case.
“Our position has always been clear; those who commit serious offences will receive serious sentences,” Lametti said.
In an interview with Global News on Friday, Canada’s Minister of Public Safety, Marco Mendicino, said in the case of Pierzchala, the “system did not work.”
“The accused was wanted for months, it should have never come to this,” he said, adding that the ministry is working with all levels of government and all levels of law enforcement to “examine potential reforms to our system.”
Mendicino said the government has agreed to “examine the laws and policies closely,” adding that it is “urgent work.”
“This is a full court press,” he said, adding that Pierzchala’s death “brings into sharp focus what’s at stake.”
“This tragedy is a reminder that we have to continue to push forward with reforms,” he said. “Not only so that we can bring offenders to justice, but so that ideally … we can stop these tragedies from occurring in the first place.”
— With files from Global News’ Hannah Jackson, The Canadian Press